ON WARRANTY. 43 



nullity, and return the horse, or to retain him notwithstand- 

 ing, and bring an action on the warranty. In the former 

 case, the price paid is the measure of the damages he will 

 be entitled to recover in an action ; in the latter, the dif- 

 ference between that price and his real value. If ho offer 

 to rescind the contract and return the horse, he may also 

 recover the expenses of his keep j but in order to do this, 

 a positive tender is said to be necessary. No notice of the 

 unsoundness need be given to the vendor, to entitle the 

 vendee to maintain the action ; nor is it necessary to bring 

 the action immediately on discovering the unsouudness. 

 But although such a notice be not essential, yet it is always 

 advisable to give it, as the omitting to do so will furnish at 

 the trial a strong presumption that the horse, at the time 

 of sale, was free from the defect complained of, thus ren- 

 dering the proof of warranty more difficult. Common jus- 

 tice and honesty require that the commodity should be re- 

 turned at the earliest period, and before it has been so 

 changed by the lapse of time as to make it impossible to 

 ascertain, by proper tests, what were its original proper- 

 ties. 



I cannot conclude this subject without advising those 

 who are satisfied with a moderate degree of goodness in a 

 horse to put up with a few trifling faults, as it often hap- 

 pens that the rider or driver is as much in fault as the 

 horse ; and after a little use these trivial faults often dis- 

 appear. 



There is no money better expended when purchasing a 

 horse, than the payment of the fee to a qualified, respecta- 

 ble veterinary surgeon, one whose professional knowledge 

 enables him. to form, and whose reputation induces him to 

 give, a correct and honest opinion as to the soundness of a 

 horse ; through saving this trifling sum hundreds of dollars 



